The main purpose of this paper is to investigate what protection Swedish legislation provides against child and forced marriages as well as the background to this protection and how it relates to human rights and cultural and religious norms regarding marriage.

The view on matrimonial purpose and conclusion varies greatly between different norm systems and is largely dependent on what kind of society the marriage occurs in, as well of the culture, tradition and religion that people relate to. In the Swedish society, the view of the majority is characterized by the fact that marriage is an individual partner relationship between two adults. This approach is also reflected in the Swedish legal system based on the idea that marriage is... (More)

The main purpose of this paper is to investigate what protection Swedish legislation provides against child and forced marriages as well as the background to this protection and how it relates to human rights and cultural and religious norms regarding marriage.

The view on matrimonial purpose and conclusion varies greatly between different norm systems and is largely dependent on what kind of society the marriage occurs in, as well of the culture, tradition and religion that people relate to. In the Swedish society, the view of the majority is characterized by the fact that marriage is an individual partner relationship between two adults. This approach is also reflected in the Swedish legal system based on the idea that marriage is entered into voluntarily and that children should not marry. In the Swedish society today, the marriage has more of a symbolic value as the welfare system is developed and sexuality is not reserved for marriage. In many other societies and cultures there can be quite different purposes behind marriage, which may also affect the perception of free will and appropriate marrying age. These different approaches also exist within various minority groups in Sweden.

Several international instruments establish that it is a human right to be free to decide on marriage and that marriage may therefore only be concluded with both parties free and full consent. There is no minimum age for marriage established in international law, but the importance of a national statutory age of marriage is emphasized. The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child recommends a minimum age of 18 years.

The protection in the Swedish civil law against child and forced marriages is mainly constituted on the parties' free and willingly given consent to the marriage for it to be valid and that people under 18 year only under exceptional circumstances are allowed to marry. However, the civil law has not always been designed this way. Not too long ago the parties' free will to marriage, mainly the women´s, was restricted and the marrying age was much lower than today. Nowadays the protection against child and forced marriages also consists of a regulation prescribing that foreign child and forced marriages as a rule are not recognized by Swedish law and that the Swedish marrying age of 18 years applies to everyone who wants to marry before a Swedish authority regardless of citizenship. Prior to 2004, the private international legal protection against child and forced marriages was much weaker than today. Foreign nationals were then allowed to marry after the age of 15 years without authority approval and there was no explicit rule which stipulated that foreign child and forced marriages were not recognized.

Some of the acts that may precede a child or forced marriage are punishable under Swedish law, which complements the civil and private international legal protection against child and forced marriages. No explicit penal provision which focuses on child and forced marriages exists in Swedish law. This has in recent years been questioned by the government, any criminalization has however so far not been accomplished. None the less a new government inquiry has this year been given mandate to look into if the civil, international private law and criminal protection against child and forced marriage can be strengthened. This has occurred against the background of a report made by “Ungdomsstyrelsen” on behalf of the Government which shows that in today's Swedish society, there are several young people who are worried that they will not get to choose who to marry.

Consequently, there is a need for legislative action in the area, the legislature is then challenged to determine how this protection should be designed in relation to human rights and cultural and religious norms in the field. While Sweden have to comply with its international commitments the legislature also face the question of which account should be taken to various minority groups views on marriage and the appropriate marrying age, which may differ from that which is developed in Swedish and international law. Previously, relatively great consideration to foreign cultures views on marriage and its conclusion was shown, but today, the legislature has clearly indicated that the individuals' human rights come first. (Less)

@misc{1763432,
abstract = {The main purpose of this paper is to investigate what protection Swedish legislation provides against child and forced marriages as well as the background to this protection and how it relates to human rights and cultural and religious norms regarding marriage.
The view on matrimonial purpose and conclusion varies greatly between different norm systems and is largely dependent on what kind of society the marriage occurs in, as well of the culture, tradition and religion that people relate to. In the Swedish society, the view of the majority is characterized by the fact that marriage is an individual partner relationship between two adults. This approach is also reflected in the Swedish legal system based on the idea that marriage is entered into voluntarily and that children should not marry. In the Swedish society today, the marriage has more of a symbolic value as the welfare system is developed and sexuality is not reserved for marriage. In many other societies and cultures there can be quite different purposes behind marriage, which may also affect the perception of free will and appropriate marrying age. These different approaches also exist within various minority groups in Sweden.
Several international instruments establish that it is a human right to be free to decide on marriage and that marriage may therefore only be concluded with both parties free and full consent. There is no minimum age for marriage established in international law, but the importance of a national statutory age of marriage is emphasized. The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child recommends a minimum age of 18 years.
The protection in the Swedish civil law against child and forced marriages is mainly constituted on the parties' free and willingly given consent to the marriage for it to be valid and that people under 18 year only under exceptional circumstances are allowed to marry. However, the civil law has not always been designed this way. Not too long ago the parties' free will to marriage, mainly the women´s, was restricted and the marrying age was much lower than today. Nowadays the protection against child and forced marriages also consists of a regulation prescribing that foreign child and forced marriages as a rule are not recognized by Swedish law and that the Swedish marrying age of 18 years applies to everyone who wants to marry before a Swedish authority regardless of citizenship. Prior to 2004, the private international legal protection against child and forced marriages was much weaker than today. Foreign nationals were then allowed to marry after the age of 15 years without authority approval and there was no explicit rule which stipulated that foreign child and forced marriages were not recognized.
Some of the acts that may precede a child or forced marriage are punishable under Swedish law, which complements the civil and private international legal protection against child and forced marriages. No explicit penal provision which focuses on child and forced marriages exists in Swedish law. This has in recent years been questioned by the government, any criminalization has however so far not been accomplished. None the less a new government inquiry has this year been given mandate to look into if the civil, international private law and criminal protection against child and forced marriage can be strengthened. This has occurred against the background of a report made by “Ungdomsstyrelsen” on behalf of the Government which shows that in today's Swedish society, there are several young people who are worried that they will not get to choose who to marry.
Consequently, there is a need for legislative action in the area, the legislature is then challenged to determine how this protection should be designed in relation to human rights and cultural and religious norms in the field. While Sweden have to comply with its international commitments the legislature also face the question of which account should be taken to various minority groups views on marriage and the appropriate marrying age, which may differ from that which is developed in Swedish and international law. Previously, relatively great consideration to foreign cultures views on marriage and its conclusion was shown, but today, the legislature has clearly indicated that the individuals' human rights come first.},
author = {Willhager, Sara},
keyword = {barnäktenskap,äktenskap,criminal law,straffrätt,rättssociologi,private international law,internationell privaträtt,familjerätt,civilrätt,private law,tvångsäktenskap,kulturella normer,mänskliga rättigheter},
language = {swe},
note = {Student Paper},
title = {Skyddet mot barn- och tvångsäktenskap inom svensk rätt - i förhållande till mänskliga rättigheter och kulturella normer},
year = {2011},
}